Archive for the ‘Admiralty’ Category
The Greatest Supreme Court Opinion?
posted by Gerard Magliocca
This week in my Admiralty class I taught my favorite case–Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970). This unanimous opinion, written by Justice John Marshall Harlan, held that a wrongful death action existed in general maritime law. Moragne overruled The Harrisburg, an 1886 case that followed the common law and said that there was no wrongful death remedy in admiralty. Many scholars believe that this is the best Supreme Court opinion, if by best you mean”most professional.”
Among the reasons this is worth reading (even if you don’t care about admiralty):
1. Moragne goes into the history of wrongful death and explains why the common law did not provide a remedy. The answer is that the “felony-merger” doctrine in England held that all property owned by a convicted murderer went to the Crown. Thus, there could be no recovery by a private party. Even though no such doctrine existed here, our courts blindly adopted the English rule.
2. The Court grounds its decision to overrule its precedent by doing an exhaustive review of the erosion of the “no wrongful death” rule, by looking at state statutes, Acts of Congress, international law, and academic criticism.
3. The Court explains why Congress’s decision to create a wrongful death remedy in international waters (in the Death on the High Seas Act) does not preclude the creation of a judicial equivalent in territorial waters where state law does not do so. That part of the opinion involves a thoughtful discussion of federalism, statutory interpretation, and the evolution of the admiralty remedy of unseaworthiness (which I’ll talk more about next week).
4. The Court then concludes by offering a detailed explanation about why stare decisis does not counsel in favor of sticking with precedent in this instance, largely because the current rules promotes uncertainty and leads to all sorts of inconsistent outcomes in similarly situated cases.
Take a look sometime–you’ll be glad you did.
February 3, 2012 at 8:51 am
Posted in: Admiralty, Jurisprudence
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The Steamboat Magnolia
posted by Gerard Magliocca
Speaking of Admiralty, I want to highlight a terrific symposium that the Saint Louis University Law Journal did on “Teaching Admiralty” in its Winter 2011 Issue. There are many fantastic essays here, but my favorite was Joel Goldstein’s piece on The Steamboat Magnolia, which is a case that many people (including me) now use to introduce the course. See Jackson v. The Steamboat Magnolia, 61 U.S. (20 How.) 296 (1857). It’s a fascinating case that delves deeply into constitutional law and jurisprudence–you should read it.
December 6, 2011 at 11:00 am
Posted in: Admiralty
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Another Interesting Case That You’ve Never Heard Of
posted by Gerard Magliocca
I am in the process of revising my admiralty syllabus, and one case that I’m going to teach next year is Kotch v. Board of River Boat Pilots Com’rs for the Port of New Orleans 330 U.S. 552 (1947). It’s a fascinating case and I thought I’d give you a summary.
Large ships that enter a harbor or a major river generally must be steered by a pilot. A pilot is a local person who knows where all of the sandbars, rocks, and channels are in a particular locale. The captain of the vessel lacks this knowledge and would founder or crash without a pilot in command. Louisiana had a law providing that a new pilot could only be licensed if a current pilot took him on as an apprentice. Some people who were denied an apprenticeship sued claiming that the pilots in the state were only hiring their relatives and friends. This kind of cronyism, it was alleged, violated the Equal Protection Clause.
The Supreme Court, in a 5-4 vote, rejected this claim. Justice Hugo Black wrote for the majority and said that there was a rational basis for allowing pilots broad discretion to select their apprentices because “[a] pilot does not require a formalized technical education so much as a detailed and extremely intimate, almost intuitive, knowledge of the weather, waterways and conformation of the harbor or river which he serves.” As a result, “the advantages of early experience under friendly supervision in the locality of the pilot’s training, the benefits to morale and esprit de corps which family and neighborly tradition might contribute, the close association in which pilots must work and live in their pilot communities and on the water, and the discipline and regulation which is imposed to assure the State competent pilot service after appointment, might have prompted the legislature to permit Louisiana pilot officers to select those which whom they would serve.”
Justice Rutledge dissented and said that “[i]f Louisiana were to provide by statute in haec verba that only members of John Smith’s family would be eligible for the public calling of pilot, I have no doubt that the statute on its face would infringe the Fourteenth Amendment.” The Court’s decision approves “as constitutional state regulation [a statute] which makes admission to the ranks of pilots turn finally on consanguinity. Blood is, in effect, made the crux of selection.”
This is one of the few Supreme Court cases that directly addresses the legality of nepotism, and I think that it deserves further study.
December 5, 2011 at 5:13 pm
Posted in: Admiralty, Constitutional Law
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AALS Panel on Admiralty and Maritime Law
posted by Gerard Magliocca
As the AALS Section Chair for Admiralty and Maritime Law, I am sorry to announce that our panel at the upcoming Annual Meeting is cancelled. This was due to the illness of one of the panelists and the ongoing labor dispute at the hotels where the conference will be held.
December 5, 2010 at 11:31 am
Posted in: Admiralty
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Thoughts on the Gulf Spill
posted by Gerard Magliocca
In anticipation of the President’s speech tonight, I thought I’d make some observations about the situation in the Gulf.
1. When I taught Admiralty last semester, I pointed out to my students that many of the statutes in this area are obsolete. But, I quickly added, Congress won’t do anything about this until there’s a crisis. Now we see a slew of proposals to amend the Jones Act, amend the Death on the High Seas Act, amend the Limitation of Liability Act, and overturn the Court’s decision on punitive damages in the Exxon Valdez case. Maritime law is hot! Of course, whether this sort of knee-jerk response leads to thoughtful changes is another matter, but overall it’s probably better that these neglected topics just get attention.
2. The discussion about setting up a 9/11 style Fund (paid for by BP) to address claims arising from the disaster is intriguing. It seems to me, though, that some new statute will required to make this work. In particular, I’m not clear on how such a fund would interact with bankruptcy law. Suppose BP puts $10 billion in escrow for the fund. Then later they have to file for Chapter 11. I don’t think that the fund would be immune from other creditors or that litigants would have priority over them (admittedly, though, some of my co-bloggers know far more about this than I do).
3. A far less important point. This crisis shows why the AALS Annual Meeting should not require such an early date for setting up panels. Obviously, I’d like to do this year’s Admiralty Section panel on the spill. But now I can’t — the deadline for setting up the panel was two months ago. Granted, AALS can organize a separate one on the issue, but their rigidity with respect to the sections is rather irritating.
June 15, 2010 at 8:07 am
Posted in: Admiralty
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Punitive Damages in Maritime Law
posted by Gerard Magliocca
As the Gulf disaster continues, it is worth thinking about about the potential liability of BP and other parties. Following the Exxon Valdez disaster, the Supreme Court held, acting in its capacity as a common-law court, that punitive damages in admiralty could not exceed the compensatory damage award. Justice Breyer dissented from this part of the opinion, explaining that “this was no mine-run case of reckless behavior. The jury could reasonably have believed that Exxon knowingly allowed a relapsed alcoholic repeatedly to pilot a vessel filled with millions of gallons of oil through waters that provided the livelihood for the many plaintiffs in this case. Given that conduct, it was only a matter of time before a crash and spill like this occurred.”
Perhaps some future court will distinguish Exxon from a suit against BP, but the opinion is awfully clear that a 1:1 rule is the law. Congress, though, is free to change this, since Exxon is not part of the Court’s due process jurisprudence on punitive damages (which treats anything above 10:1 as suspect). Just as Congress may amend the Limitation of Liability Act in response to this crisis, they should also look at the punitive damage question.
June 9, 2010 at 8:14 am
Posted in: Admiralty
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Limitation of Liability and the Gulf Oil Spill
posted by Gerard Magliocca
Transocean (RIG), which owns the platform that exploded in the Gulf and caused the massive ongoing oil spill, is seeking to invoke the Limitation of Liability Act of 1851. This law, which has never been amended with respect to property or environmental damage claims, provides that a carrier cannot be held liable for anything more than the value of the vessel and its contents if the ship is involved in an accident that causes those sorts of harms. It probably goes without saying that the value of the oil platform (more specifically, what’s left of it) is way less than RIG’s probable share of the cleanup costs.
I am very skeptical that the statute applies to an offshore oil platform, in part because that is not navigable and does not involve “traditional maritime activity.” More broadly, though, this might be the right time to abolish this doctrine entirely. Maritime scholars (me included) have long held that in a modern world of insurance and corporate organization, the limitation of liability is obsolete. The problem is that Congress hasn’t had any reason to repeal the 1851 Act — it’s a pretty obscure area of law. A high-profile incident like the Gulf spill, though, might change that, especially if a court somewhere accepts RIG’s defense.
May 13, 2010 at 6:28 pm
Posted in: Admiralty
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General Average and Takings
posted by Gerard Magliocca
One of the maritime doctrines that I enjoy teaching is the general average. This principle applies when cargo is voluntarily sacrificed by the crew in a successful effort to save a ship in distress (or when a ship makes a similar sacrifice to save the cargo). Let’s say the master decides that he needs to throw cargo overboard to lighten the vessel and prevent it from sinking. If this works, then the cargo owner who suffers a loss must be compensated by the vessel and the other cargo owners. The compensation is calculated on a proportional basis depending on the respective values of the cargo and the vessel, with each party paying something and with the cargo owner who was affected also paying a share. (In other words, the party who suffers a loss is not fully compensated.)
There is a fruitful analogy here to takings law. The general average, like a taking, involves payment when property is used for the common good. (Of course, the general average involves private owners rather than an acquisition by the state.) There is an interesting paper that could be written comparing how these sea and land doctrines are applied. Here’s an example. In cases where property is taken in an emergency and successfully halts the danger, the property owner typically gets zero. Why? Because the thought is that the property would have been destroyed anyway (say by a giant fire or a disease). In the maritime context, we say that the property owner who sacrificed should just not be compensated fully, but should get something.
April 8, 2010 at 9:18 am
Posted in: Admiralty, Uncategorized
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Pirates and Terrorists
posted by Gerard Magliocca
Officials in Washington are still struggling with how to deal with
the alleged terrorists detained in Guantanamo. One day the issue is whether some of them should be tried in a civilian court and, if so, where? Another day the question is whether, and how, they should be tried by military commissions. And then there is the thought that some of the detainees should just be held indefinitely without trial.
The most fruitful analogy for thinking about this problem comes from piracy. (Eugene Kontorovich has an excellent paper on the modern aspects of this comparison coming out in California Law Review.) Pirates and terrorists are both irregular enemies (or unlawful combatants) whose actions are clearly condemned by international law. So I thought I would talk about the British experience with suppressing piracy to see what we might learn about dealing with alleged terrorists.
January 29, 2010 at 11:38 am
Posted in: Admiralty
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Arrr . . . matey!
posted by Gerard Magliocca
Yesterday I became the Chair of the AALS Section on Admiralty and Maritime Law. It was a bitter, hard-fought campaign in which I was the only volunteer. So my main task is to put together a panel for the 2011 AALS Conference in San Francisco.
My idea for a panel builds on a post that I did wrote way back in April, which talked about what scholars in other fields can learn from Admiralty. What I would like to do is get a contracts person, a torts person, and a corporate law person to talk about the relevant distinctions between maritime law and land-based doctrine. I think that could be a fun discussion for lots of folks. Please email me if you’re interested in participating.
January 11, 2010 at 11:45 am
Posted in: Admiralty
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Fun Cases You’ve Never Heard of — Part II
posted by Gerard Magliocca
United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818) is almost certainly the best case on statutory interpretation that you can use in the classroom. If you’ve never heard of it, that’s because it is a maritime case about pirates.
Three Americans were convicted of piracy on the high seas. A federal law provided for capital punishment where someone on the high seas committed “murder or robbery, or any other offense, which, if committed within the body of the country, would, by the laws of the United States, be punishable with death.” The defendants argued that their crime was a robbery (no murder was involved) and that robbery was not a capital crime on land. Thus, they could not be sentenced to death.
December 21, 2009 at 9:07 am
Posted in: Admiralty
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Fun Cases That You Don’t Know
posted by Gerard Magliocca
Since it’s that time of year (by which I mean exam time), I thought I’d write a recurring series of posts on neat cases that I use in my courses but are relatively unknown. These will mostly be Admiralty cases, as I doubt that there are any “fun” constitutional or IP decisions that are hidden in plain sight.
Let’s start with Koistinen v. American Export Lines, 83 N.Y.S.2d 297 (1948). Plaintiff was a seaman who was on shore leave in Yugoslavia. At a bar, he “met a woman whose blandishments, prevailing over his better sense, lured him to her room for purposes not entirely platonic; while there ‘consideration like an angel came and whipped the offending Adam out of him’; the woman scorned was unappeased by his contrition and vociferously remonstrated unless her unregarded charms were requited by an accretion of ‘dinner,’ . . . the court erroneously interpreted the word as showing that the woman had a carnivorous frenzy which could only be soothed by the succulent sirloin provided at the plaintiff’s expense; but it was explained to denote a pecuniary not a gastronomic dun”
I could go on quoting this opinion all day, but to move things along the seaman (having changed his mind about going through with this assignation) was locked in the room by the woman and confronted by her pimp. The sailor leapt out the window to escape, fell about eight feet, and broke his leg. The issue was whether the ship was required to pay maintenance and cure (medical expenses and lost wages) related to his injuries. The Court said yes, on the grounds that shore-leave injuries (with one or two exceptions) are considered work-related in maritime law. After all, stranding a sailor in a foreign port with no medical care would be contrary to the remedial goals of maintenance and cure.
December 9, 2009 at 1:07 pm
Posted in: Admiralty
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Pirate Democracy
posted by Gerard Magliocca
I just finished a fun book that I want to recommend. It’s “The Invisible Hook: The Hidden Economics of Pirates” by Peter T. Leeson. The author explores the Golden Age of Piracy (circa 1720) and shows how pirates overcame collective action problems. While there are many parts that are of interest to lawyers (for example, the pirate use of trademarks — the Jolly Roger — and crude advertising to enhance their brand of terror and encourage capitulation), the issue that I want to focus on is pirate governance.
Leeson points out that pirates needed to create a legitimate authority amongst themselves because the cost of having unhappy crew members was high. Even one disgruntled pirate could desert and expose the ship to the authorities. (And the penalty for piracy was death). So how did pirate gangs handle this?
April 21, 2009 at 6:27 pm
Posted in: Admiralty
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Parrots and the Jolly Roger
posted by
Piracy is back in the news, and it’s not the intellectual kind. This is great for admiralty professors, and so I thought I’d take advantage of this brief moment in the sun to talk about some general legal issues involving pirates before discussing the ones operating off of Somalia.
Since ancient times, pirates have been considered public enemies under customary international law. This meant that ships were free to use force on the high seas to repel or capture pirates. Indeed, the phrase “public enemies” is still used in maritime contracts as a justification for non-performance in the event of a pirate attack. National governments sometimes authorized privateers to attack enemy merchant ships with letters of marque (the Constitution empowers Congress to issue these in Article One, Section Eight) but these immunity grants from domestic piracy prosecution have not been issued for decades.
April 13, 2009 at 8:18 am
Posted in: Admiralty
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The Case Against Delaware
posted by Frank Pasquale
The state of Delaware has just won a major dispute with New Jersey in the Supreme Court, over a vigorous dissent by Justice Scalia. The dispute concerned New Jersey’s plan to build a “huge gas-processing plant on the Jersey side of the Delaware River.” As the NYT reports,
New Jersey has threatened to pull state pension funds from Delaware banks. Delaware officials, meanwhile, talked about calling up its National Guard to guard its border. . . . [A] New Jersey legislator wondered aloud about recommissioning the battleship New Jersey, now a museum on the Camden waterfront, just in case.
The majority agreed . . . that New Jersey could not authorize activities “beyond the exercise of ordinary and usual riparian rights in the face of contrary regulation by Delaware.” Justice Antonin Scalia . . . professed to be flabbergasted by the majority’s reasoning. What was so “extraordinary” about a wharf to unload liquefied natural gas, he asked. “Would a pink wharf, or a zig-zagged wharf qualify? How about one for the transfer of “tofu and bean sprouts”?
It all reminds me of a classic 2002 article by Jon Chait charging Delaware with persistent disregard for other states’ interests. . . .
March 31, 2008 at 6:21 pm
Posted in: Admiralty, Humor, Supreme Court
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Flying the Stratified Skies
posted by Frank Pasquale
Travel has always served to remind us of the divisions our “classless society” tries so hard to downplay. Sam Walton may have driven an old truck, but you’d be hard-pressed to find most top executives or trust-funders flying in less-than-first-class digs. As the song in Chitty-Chitty Bang-Bang put it,
O the posh posh traveling life, the traveling life for me
Pardon the dust of the upper crust – fetch us a cup of tea
Port out, starboard home, posh with a capital P. . .
Admittedly, for those of us crushed into coach, there was always a happy flipside to the narrative: the profligates up front were paying so much more for their seats, effectively subsidizing the rest of us.
But that subsidy effect has been on the wane in recent years. And now wealthy fliers have found a new way to effectively assure that the rest of us are subsidizing them:
Corporate jets pay a fraction of the taxes and fees that commercial airliners do. The F.A.A. estimates that private planes, which include both corporate jets and weekend fliers, account for 16 percent of the air traffic control system’s overhead but contribute only 3 percent of the fees earmarked to run the system.
***
The Air Transport Association has . . . created a Web-based ad campaign featuring a fictional traveler, Edna, complaining about the fee disparity while the computer screen displays waves of corporate jets filling the skies before and after sporting events like the Kentucky Derby and the Masters golf tournament.
It’s enough to wilt the mint in your julep. As the campy YouTube ad sloganeers, travelers like “wearing big wigs, not subsidizing them!” Edna (pictured above) wonders “Why should the rest of us pay ten times more using the same services?”
Fortunately, the FAA has heard her pain, and is planning on “sharply increasing the fuel tax for private jets and also hitting corporate fliers with extra charges to land at any of the country’s 30 most congested airports.”
August 28, 2007 at 9:45 am
Posted in: Administrative Law, Admiralty, Law and Inequality, Tax
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The Thin Line Between Pirate and Repo Man, Arrrg Matey!
posted by Nate Oman
“Great things are done,” says Blake, “when men and mountains meet;/ This is not done by jostling in the street.” The results when repo men and the sea meet, it would seem, are also not the sort of things done by “jostling in the street.” Under Article 9, a creditor can repossess the collateral of a defaulting debtor so long the repo is done without a “breach of the peace.” What happens, however, when the collateral is a ship? In theory, the sea is governed by a web of international conventions supplemented by the customs and principles of admiralty law. In his fascinating book The Outlaw Sea: A World of Freedom, Chaos, and Crime, William Langewiesche reveals that the reality is considerably messier. The vastness of the oceans continues to provide a level of anonymity that is surprising in our information soaked age, and mobility allows ships to decamp to friendly or corrupt (or both) jurisdictions with ease. In many ways, it is still the wild, wild West. (Perhaps Pirates of the Carribean is a better metaphor.)
Enter F. Max Harberger, who — according to an L.A. Times story sent me by one of my students — is essentially in the business of stealing ships for creditors whose debts are due. The legality of what he does is far from clear, although in fairness he is frequently repoing ships that have been illegally seized by port officials in the developing world who are easily bribed. A $10 million ship can apparently be seized with a $100 bribe to a justice of the peace. Consider the following repo:
March 2, 2007 at 10:29 am
Posted in: Admiralty, Contract Law & Beyond
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